The 24-Hour Home Care Shift: Why This Debate Matters

Imagine packing your overnight bag, kissing your children goodbye, and clocking in for another 100-hour work week—yet still worrying about scraping together enough money to pay the bills at the end of the month.

Picture telling a family that their mother with dementia will need to leave her home of 65 years—a deeply disruptive move—because your home care agency does not have enough funding to cover the continuous care that she requires.

Under the current interpretation of New York labor law, up to eight hours of every 24-hour shift for home care workers may be designated as unpaid sleep time, provided that at least five hours are uninterrupted. When accounting for unpaid meal breaks as well, workers are only entitled to 13 hours of compensation for each 24-hour shift, also known as a “live-in” or “sleep-in” case. However, the New York Supreme Court recently ruled on several class-action suits that home care workers who provide round-the-clock care (but maintain their residences elsewhere) should be paid for every hour—causing major upheaval in the state’s home care industry and potentially setting a new precedent for the industry nationwide.

Workers’ rights advocates hail the recent rulings as a victory for overworked and underpaid home care workers. If home care workers are required to remain on-site and available throughout each shift, advocates argue, they should be covered by minimum wage and overtime protections for the full 24 hours. On the other hand, home care industry leaders argue that compensating workers for the full 24 hours would make this type of care cost-prohibitive for many providers that already operate on very tight margins—leading to cutbacks that will impact high-risk and vulnerable home care clients.

In response to the Supreme Court decisions, the New York Department of Labor (NYDOL) issued an emergency revision of the Minimum Wage Order to reinforce the 13-hour rule for all 24-hour home care workers. In January, the Industrial Board of Appeals (IBA) denied a petition challenging the legality of the emergency revision, citing lack of jurisdiction, and the emergency rule has been extended through April 4, 2018. However, the IBA’s decision may be appealed and reassessed. (There is also a split between the federal and state courts on this issue, as U.S. District Courts ruled in favor of the NYDOL’s 13-hour rule in 2012 and 2016.) While the legal battles continue, home care leaders must prepare for the potential changes ahead—and in the meantime, home care workers are still receiving the same wages for 24-hour shifts.

Home care workers—primarily personal care assistants and home health aides—assist older adults and people with disabilities to live at home and maintain the highest possible level of health and wellbeing. Despite this essential contribution, home care jobs are generally characterized by low pay and limited opportunities for career advancement; median annual earnings for home care workers in New York are just $18,000 and more than 50 percent live below 200 percent of the federal poverty line. The work is physically and emotionally demanding and often socially isolating. Home care workers who cover 24-hour shifts sacrifice their personal time and family life to provide consistent care for clients with extensive needs—yet still face financial hardship.

What This Means for the Home Care Field

The New York Supreme Court decisions underscore an important message: home care workers should be fairly and adequately compensated for their time and dedication. However, the potentially negative outcomes of these decisions must be considered. If required to compensate workers for 24-hour shifts, home care agencies will likely reconfigure their case management practices to keep costs down in ways that undermine care quality. To limit overtime, 24-hour cases may be reassessed as two 12-hour shifts (covered by two workers, with no assumption of sleep time)—but many other clients might see their service hours reduced or be turned away altogether. Some industry leaders predict that many smaller home care agencies will be forced by this new policy to shut their doors entirely, particularly if agencies are held liable by the court for six years of back pay for 24-hour cases.

The small proportion of clients who can afford to pay for their own care might turn to the unregulated “gray market” to negotiate lower prices—private-pay, out-of-pocket transactions that leave both clients and workers without many critical protections and supports. In contrast, clients who rely on Medicaid might be required, against their preferences and at a higher cost to the long-term care system, to move into an institutional setting to receive 24-hour care. These changes disrupt continuity of care, which is maintained in part through the personal relationships between clients and home care workers, and introduce new costs, including the costs of acute health events that could have been avoided through uninterrupted daily care.

However, the responsibility for adapting to the new policy should not fall entirely on individual home care agencies. The majority of home care services are funded by Medicaid, with the remainder reimbursed by consumers, Medicare (for short-term post-acute care) or, rarely, long-term care insurance. In New York, most Medicaid funding is disbursed through monthly, per-person payments to managed care organizations that contract with home care agencies or fiscal intermediaries. In short, home care is largely a publicly-funded space, and the state must take the lead in determining how workers can be fully compensated without compromising care for their clients.

National Implications: What Should We Consider?

The way that New York grapples with the 24-hour case ruling will set an example for other states that face similar legal challenges in the future. The first step is to ask the right questions, starting with: how many clients and workers will be affected? (According to one estimate, 8 percent of New York’s home care workers cover 24-hour shifts.)

Other important questions:

• What is the potential financial impact on providers and the state?
• What would it cost for home care providers to keep the same caseload but convert to 12-hour rather than 24-hour shifts?
• How might assessment criteria, which set a higher threshold of need for 12-hour shifts, change to ensure that clients who were previously approved for 24-hour shifts still receive the care they need?
• What other case management scenarios might be explored?
• How should Medicaid reimbursement rates change to cover the cost of 24-hour shifts—and how will the state guarantee that workers receive the increased funding as intended?
• And looking beyond home care: how are other sectors, such as nursing and fire services, ensuring enough funding to cover employees while they are “engaged to wait;” that is, at their place of employment and on-call as needed?

Full compensation for 24-hour shifts is one important step toward improving the quality of home care jobs. In turn, an investment in home care workers’ wages can enhance efforts to combat workforce attrition and recruit new workers to meet the rapidly growing demand for home- and community-based services. According to PHI estimates, there are approximately 327,000 personal care and home health aides in New York State, but an estimated 125,000 more will be needed by 2024, and many home care agencies already report turning clients away due to staffing shortages caused by high rates of job vacancy and turnover.

By focusing on more than just immediate cost-containment, New York can demonstrate to the rest of the country how to parlay a legal challenge into a long-term win for the workforce and the industry.